Local governments must adapt to the new normal in climate – and perhaps the law

Two items in the news deserve the attention of local officials, here and across the Southwest. Together, they describe what could be the new normal for the region – and suggest what might have to be one response.

In essence, climate change is making wildfires worse, and insurance companies are saying climate change-driven events are “foreseeable risks.”

An Associated Press story in the Herald on Monday described how several studies have found that “wildfires are getting bigger, human-made climate change is to blame and it’s only going to get worse with more fires starting earlier in the year.” Devastating wildfires in Southern California last week reinforced that conclusion.

One of those fires was probably ignited by sparks from construction equipment. But the real causes of all were drought, heat and high winds. The first four months of 2014 have been the hottest on record in California and Arizona, while the entire state of the former is experiencing an ongoing drought.

A study reported in April, the main author of which was Phillip Dennison of the University of Utah, showed in the last 30 years, the acreage burned by large wildfires in the West has increased by more than 87,000 acres per year. As he told the AP, “We are going to see increased fire activity all across the West as the climate warms.”

Dennison’s take was also one of the “key messages” of the federal National Climate Assessment released this month. A report from the Intergovernmental Panel on Climate Change made the same point in March. It also pointed out that wildfires have killed 103 Americans in the last 30 years.

Tuesday afternoon, the La Plata County Office of Emergency Management issued a red-flag warning for what it calls “fire weather”: dry and windy conditions. It was the fourth such day in a row, with more likely to come.

Meanwhile, a number of news agencies have reported that Farmers Insurance Co. has filed a series of class-action lawsuits on its own behalf (and that of other insurance companies and customers) against Chicago-area municipalities. It is arguing the cities’ shoddy infrastructure failed to keep up with problems officials knew were coming, and their inaction caused the insurance company losses.

Farmers’ case is about flooding. The company’s lawsuits maintain the municipalities knew their drainage systems were substandard and cite official plans from 2011 that laid out the inadequacies. Moreover, they point to rainfall records and a climate change action plan adopted by Chicago in 2008 that recognized the link between climate change and increased rainfall in that area.

As an insurance industry analyst said, “I think what the insurance companies are saying is: ‘We’re in the business of covering unforeseen risks. Things that are basically accidents.’ But we’re now at a point with the science where climate change is now a foreseeable risk.”

That argument could be applied to fire as well. If a city or county knows climate change is worsening the risk of fire and amplifying the results but does too little to mitigate the outcome, would it not be responsible? Local governments have a lot to say about construction, zoning and land use, all of which can affect the risk of fire. If a government does not mandate defensible space around homes, could it be liable?

Lawsuits can go either way, and suing governments is inherently problematic. But it is also true that insurance companies have deep pockets and armies of lawyers. As a law professor told National Public Radio, it might be better for all involved for local governments to take climate change seriously.